[ v15 p49 ]
The decision of the Authority follows:
15 FLRA No. 10 LABORERS INTERNATIONAL UNION, LOCAL 1276, AFL-CIO Union and DEFENSE LOGISTICS AGENCY DEFENSE DEPOT TRACY, TRACY, CALIFORNIA Agency Case No. O-NG-647 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues relating to the negotiability of two Union proposals. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 If licensed, will only operate material handling equipment such as forklift, vacuum lift, and small gantry only in the absence of a qualified operator and only to accomplish the immediate work assignment. The record indicates that the two proposals herein were offered in response to the implementation by the Agency of a new position description for the "packer" position. Among the duties described in the new description is one involving the operation of materials handling equipment, including the machinery listed in Union Proposal 1. The Union describes the purpose of its proposals as preventing "any misunderstanding" concerning when a packer could be assigned to operate materials handling equipment. Moreover, the Union asserts that Union Proposal 1 is consistent with the Office of Personnel Management (OPM) Job Grading Standard for Packer which makes no reference to operation of materials handling equipment nor "does it allow for dual title of Packer Forklift Operator." Union Proposal 1, however, by limiting the operation of materials handling equipment by packers only to those times when a "qualified operator" is unavailable, is to the same effect as the proposal which the Authority found to be inconsistent with the management right, pursuant to section 7106(a)(2)(B) of the Statute, "to assign work" in National Labor Relations Board Union, Local 19 and National Labor Relations Board, Region 19, 2 FLRA 775 (1980). The Authority concluded that the proposal in that case, which conditioned the assignment of specified work to one employee upon the absence of another employee, "would eliminate the discretion inherent in management's right to assign work(.)" Hence, based upon National Labor Relations Board, Region 19, and the reasons and case cited therein, Union Proposal 1 herein is likewise outside the duty to bargain. As to the Union's assertion that Union Proposal 1 is consistent with the applicable OPM Job Grading Standard, in that the standard does not include operating materials handling equipment among the duties of the packer occupation, it is noted that OPM states its "standards do not prescribe agency organization of work or the content of positions." /2/ Thus, the absence of a specific duty among those listed for a particular function in the standard for an occupation does not preclude the assignment of such unlisted duty to an employee. In any event, matters relating to the classification of positions are excluded from the definition of "conditions of employment" by section 7103(a)(14)(B) of the Statute and are outside the duty to bargain. Union Proposal 2 No incidental licensing will become a requirement in either selection or performance appraisal. Union Proposal 2 attempts to limit the qualifications requirements that the Agency may establish in rating candidates for vacancies in the packer occupation. In this respect, the proposal is to the same effect as the Union Proposals which were before the Authority in National Federation of Federal Employees, Local 1332 and U.S. Army Materiel Development and Readiness Command (DARCOM), 3 FLRA 200 (1980). The Authority found the proposals in that case, which sought to prescribe the training, experience, and qualifications to be possessed by employees assigned as alcohol and drug abuse counselors, to be intended to determine the "types" of employees who could be assigned as counselors. Therefore, it was concluded that the proposals were negotiable only at the agency's election pursuant to section 7106(b)(1) of the Statute. In like manner, Union Proposal 2, herein, seeks to bargain over the types of employees who may fill packer positions by preventing possession of a license to operate materials handling equipment from being a qualification requirement for the positions. Consequently, since the Agency has elected not to bargain on the proposal it is not within the duty to bargain. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., June 8, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency's motion to dismiss the petition for review, based on the Union's failure to request in writing an allegation of nonnegotiability, is hereby denied. It is now well established that a union may properly initiate a timely negotiability appeal to the Authority upon receipt of an unsolicited written allegation of nonnegotiability from the agency. See, e.g., New York State Nurses Association and Veterans Administration Medical Center, Bronx, New York, 11 FLRA No. 94 (1983). /2/ Federal Personnel Manual Supplement 512-1, Job Grading System for Trades and Labor Occupations, Part 1, Explanation of Job Grading System, (1981), p.8.